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No fault divorce – Where are we now?

Insights - 17/12/2018

For many years family lawyers have been campaigning for “no fault” divorce to be introduced in England and Wales. Recently, family lawyers have marked ‘Good Divorce Week’ which highlights the work many practitioners are doing to facilitate more amicable divorces.

Our current divorce law requires couples to either live separately for a minimum of 2 years, or blame their spouse’s behaviour or adultery. This is unsuitable for couples who have mutually decided that their marriage is at end through no particular fault of either party. They are faced with the difficult choice of waiting 2 years (during which time financial arrangements are often difficult to manage), or attributing blame to one party.

During an already difficult time, couples who are trying to be amicable in working out their arrangements are forced to ‘attach blame’ in legal terms, when in reality they believe the relationship has simply broken down. This has potentially damaging consequences when the parties are trying to agree how to resolve finances and co-parent going forward.

Research published by the Nuffield Foundation in 2017 found that:

62% of petitioners and 78% of respondents said that in their experience using fault had made the process more bitter

21% of fault-respondents said fault had made it harder to sort out arrangements for children

31% of fault-respondents thought fault made sorting out finances harder.

Progress towards no-fault divorce

Previous calls for the introduction of no-fault divorce have not led to statutory effect. In 2001, the Government repealed legislation that would have introduced no-fault divorce and declared the relevant provisions to be unworkable, following the failure of pilot scheme trialling them.

No fault divorce was thrust into the spotlight again earlier this year after the Supreme Court’s judgment in the case of Owens v Owens. In that case, Mrs Owens was not able to end her unhappy marriage as she failed to satisfy the legal test for irretrievable breakdown. She was not able to prove that her husband’s behaviour was ‘such that she couldn’t reasonably be expected to live with him any longer.’ The Supreme Court ruled that Mrs Owens would need to stay married to her husband for 5 years after their separation, in order to divorce him without his consent or evidence of fault. This case was widely reported and highlighted the need for our divorce law to be updated to reflect modern relationships.

In November 2018, in the case of VW v BH the Court awarded huge legal costs to the Wife after the Husband pursued a lengthy legal battle, trying and failing to show that the wife’s behaviour (and not his 20+ year adulterous relationship) had caused the marriage breakdown. The divorce was inevitably granted and this case again illustrates the need for reform.

This case was reported shortly after the publication by the Ministry of Justice of a consultation paper entitled “Reform of the legal requirements for divorce”. The Government has proposed to reform the law by adjusting the legal requirements to end a marriage, including removing the ability to allege fault. The proposals include:

retaining the sole ground for divorce: the irretrievable breakdown of marriage;

removing the need for a spouse to evidence of the other spouse’s conduct or a period of living apart;

introducing a new notification process where one or possibly both parties, can notify the court of the intention to divorce;

removing the opportunity for the other spouse to contest the divorce application

The Ministry of Justice’s consultation has now closed. Family practitioners throughout England and Wales await the outcome with interest – watch this space!

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